Does the Internet Need a Global Regulator?

2012 has already witnessed historic Internet policy debates in the United States over digital copyright, online privacy, and cybersecurity. These issues have bitterly divided many organizations, academics, companies, and policymakers.

This article originally appeared in Forbes

2012 has already witnessed historic Internet policy debates in the United States over digital copyright, online privacy, and cybersecurity. These issues have bitterly divided many organizations, academics, companies, and policymakers.

It comes as some relief, then, that the next major Net policy battle will unite almost everyone in a common cause: stopping the United Nations from taking over the Internet.

The U.N.’s International Telecommunication Union (ITU) is currently planning what will be on the agenda for this December’s World Conference on International Telecommunications (WCIT) in Dubai. The fear that the ITU might be looking to exert greater control over cyberspace at WCIT has led to a rare Kumbaya moment in U.S tech politics and everyone is rallying around the flag in opposition.

In the short term, however, this threat is somewhat overstated. There’s no way the U.N. could “take over the Net.” It’s a technical impossibility. The Internet’s infrastructure and governance structure are both too decentralized for any one global entity to take control.

Nonetheless, vigilance in the face of greater global meddling with the Net remains a worthwhile endeavor. Many countries across the globe are hoping to gain a greater say over how the Net operates. Some of them are looking to extract money out of the system since traditional telecom revenues have dried up. Other governments cite a variety of amorphous security concerns, often driven by the fear that unregulated electronic networks could threaten their regimes. Still other states claim that hate speech, objectionable content, and online child safety are problems that demand coordinated global solutions. “Cleaning up the Net” has always had a broad constituency. Finally, personal privacy and intellectual property protection have emerged as major motivations for greater global “harmonization” of regulation.

But the resistance movement to rebuff greater global Net control faces two serious problems. First, there’s a lack of a clear, principled policy vision to counter those growing global calls for centralized Internet control. Second, many of those who oppose greater Net regulation in the aggregate actually favor it in narrow circumstances for their own pet issues.

Over time, these factors could make it easier for governments across the globe to wrap their tentacles tightly around every facet of online life and commerce, even if there’s little chance of the U.N. “taking over the Net” in the short term.

The Limits of “Multistakeholderism”

To the extent that America and other liberal democracies possess an Internet policy paradigm these days it seems to come down to “multistakeholderism,” which refers to the process of bringing together diverse stakeholders and ensuring they have “a seat at the table” in policy negotiations. The problem is, “as an ideology that can guide change, multistakeholderism is both radically incomplete and flawed,” argues Milton Mueller, author of Networks and States: The Global Politics of Internet Governance. That’s because multistakeholderism is simply a process, and “does not provide any guidance on substantive policy issues of Internet governance,” Mueller correctly notes.

Saying you believe in multistakeholderism is like saying you believe in democracy; no one could disagree, but it doesn’t really tell us much about which values are paramount to shaping a system or a society. In this case, multistakeholderism doesn’t tell us what principles or policy vision should guide our efforts to prevent the ITU and other international actors from asserting more control over the Net. Even if all the groups “at the table” agree that such a result would be a disaster, how is multistakeholdism going to stop it?

On its own, it won’t. Here’s what will: A clear statement in defense of cyberliberty and “Hands Off the Net.” 

Fifteen years ago, that was the policy of the United States government. In July 1997, the Clinton Administration released its Framework for Global Electronic Commerce, which asserted that “governments should recognize the unique qualities of the Internet” and appreciate “its decentralized nature and… tradition of bottom-up governance.” More importantly, “governments should avoid undue restrictions on electronic commerce” and “parties should be able to enter into legitimate agreements to buy and sell products and services across the Internet with minimal government involvement or intervention.”

As I noted here in February, the Clinton Administration’s Framework“remains the most succinct articulation of a pro-liberty, market-oriented vision for cyberspace ever penned,” and it’s still very much worth emulating today. Since that time, however, the debate over what “Internet freedom” means has grown muddled and officials in both the Bush and Obama Administrations have often spoken with two voices; they’ve talked a big game about Net freedom at times, but supported onerous regulation in certain cases. There’s a reason for that and it gets to the second major problem with “multistakeholderism” as a policy paradigm.

When Pet Concerns Drive Policy, Holding Off Global Control is Harder

Every stakeholder in the multistakeholder process of Internet policymaking has a dedicated, vociferous constituency that often advocates policy activism and government control for their own pet issue, even as they reject control elsewhere. For example, many of the “civil society” and “access to knowledge” groups that routinely engage in these multistakeholder processes decry greater global copyright enforcement efforts. With their next breath, however, they will advocate increased online privacy regulations and even global harmonization of those rules. They also favor a host of economic controls in the name of preserving “openness” or “neutrality.” Conversely, many corporations who have a seat at the multistakeholder table will protest privacy and speech controls but advocate greater copyright and cybersecurity measures.  Put simply, there is no consistent call for cyberliberty anymore.

Thus, the threat of global Internet regulation is not being driven so much by a single country or institution (like the ITU) at the global level. Rather, the push for greater control is being driven indirectly by the actions of dozens of “stakeholders,” all of whom want some control, but differ regarding what sort of control they are talking about. If Internet freedom dies, therefore, it will not be from one fatal blow from above but instead from death by a thousand cuts as countless constituencies seek and gain greater control — both domestically and globally — to address their particular concerns.

The Fear of Balkanization

The other fear that drives this debate is balkanization. For example, Federal Communications Commission (FCC) Commissioner Robert McDowell, who sounded the warning call on the ITU threat long before any other political leader, worries that “a balkanized Internet would be devastating to global free trade” and “would also undermine the proliferation of new cross-border technologies, such as cloud computing.” Similarly, FCC Chairman Julius Genachowski asserts that “we’re at a crossroads when it comes to the future of the Internet” and that “down one path is a free, open and common global medium, generating ongoing innovation and massive economic and social benefits worldwide,” while “down another is a balkanized Internet that stunts innovation and slows economic growth.”

In a statement this week, the Obama Administration also said that “the United States will vigorously oppose… regulatory actions [that] would create a confusing array of ‘local Internets.’” Finally, a major recent report from the Aspen Institute (Toward a Single Global Digital Economy) argued forcefully that “if countries wall themselves off from the global medium, or unduly restrict users’ access to content, or if jurisdictional niceties block the transfer of information across borders, the public suffers” in a variety of ways. “All elements of a digital economy and society should be bought, sold, created or experienced in a single seamless global market of goods, services and ideas over broadband infrastructures that operate in a dynamic commercial environment,” the report stated.

They’re all correct; a globally connected “network of networks” has had enormous social and economic benefits. It would be hugely troubling to see the Net become fragmented and quarantined by country or continent.

But the ideal of a perfectly unified Internet is challenged by the fact that today’s Net is already balkanized to a certain degree. Many countries take steps to assert authority over online speech and commerce, and some (China, Iran, etc.) have already walled themselves off from the rest of the global Internet in an attempt to silence dissent or calls for regime change.

Hopefully more countries won’t follow suit and try to wall themselves off from the rest of the wired world. But, for the sake of argument, let’s say some do. What are we going to do about it?

If a “unified Internet” becomes our predominant Internet policy objective, it puts America in a precarious position. On one hand, we’ll want to continue to engage in international discussions about the future of the Internet to ensure the free flow of online ideas and digital commerce. But if we bend over backward to prevent balkanization at all costs, we’ll be forced to negotiate deals that balance the desires of control-hungry states with our own principles and priorities.

That’s a recipe for trouble. At some point, we must be prepared to Just Say No. If the rest of the world wants to drive the Internet off the cliff and straight into the hell of centralized regulatory control, America need not be along for the ride. Nor do we even need to be in the room with them if such a thing is being negotiated.

The better alternative is to lead by example here at home by reinvigorating the vision of cyberliberty and making it clear that “Hands Off the Net” remains the sensible, practical, and principled way to ensure the Internet remains a robust platform for the free movement of ideas and commerce.

Toward that end, the Obama Administration has it exactly right when they argue “centralized control over the Internet through a top-down government approach would put political dealmakers, rather than innovators and experts, in charge of the future of the Internet. This would slow the pace of innovation, hamper global economic development, and lead to an era of unprecedented control over what people can say and do online,” the White House correctly asserts.

But the Administration must not conflate that exceptional vision with the “multistakeholder process” it places on a pedestal. To be clear, multistakeholderism works quite well in truly voluntary, decentralized, and targeted contexts, such as the coordination of technical networking standards and efforts to set norms and best practices in narrowly-defined areas. But multistakeholderism is wholly insufficient and inappropriate as a policy paradigm to defend real Internet freedom and open, decentralized digital networks.

Only a clarion call to preserve and defend cyberliberty can stop the coming onslaught of global Internet regulation.